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HomeMy WebLinkAbout2015-3083.White et al.19-01-17 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2015-3083; 2015-3137; 2015-3181; 2016-0053; 2016-0108; 2016-0168; 2016-0215; 2016-0267; 2016-0380; 2016-0405; 2016-0703; 2016-0736; 2016-0746; 2016-1070; 2016-1330; 2016-1412 UNION#2016-0368-0008; 2016-0368-0012; 2016-0369-0014; 2016-0368-0031; 2016-0999-0029; 2016-0368-0037; 2016-0234-0082; 2016-0234-0094; 2016-0369-0021; 2016-0369-0023; 2016-0248-0011; 2016-0999-0047; 2016-5112-0072; 2016-0616-0015; 2016-0719-0017; 2016-5112-0110 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (White et al) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Ken Petryshen Arbitrator FOR THE UNION Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Paul Meier Treasury Board Secretariat Legal Services Branch Senior Counsel HEARING March 22, 2017; June 12, 2017; April 3, 2018 - 2 - DECISION [1] I have before me a number of grievances which allege a failure by the Employer to comply with a Letter of Understanding (“LOU”) that deals with Administrative Compensating Leave (“ACL”). Although the grievances raise a number of issues, the parties agreed to focus at this stage of the proceedings on certain central issues that arise from a Union grievance dated May 27, 2016. [2] The Union grievance was filed against the Ministry of Community Safety & Correctional Services and the Ministry of Children and Youth Services. It reads as follows: STATEMENT OF GRIEVANCE The Employer is in violation of the Collective Agreement and the ACL Letter of Understanding by not prorating ACL entitlement for any employee that commenced employment post January 1, 2016. SETTLEMENT DESIRED 1) Prorate ACL entitlement for any employee who commenced employment after January 1st, 2016. 2) Compensate any bargaining unit employee adversely affected by this inappropriate refusal to prorate ACL credits. 3) Any other remedy deemed appropriate. [3] The ACL LOU is in Appendix COR33 (“COR33”) and forms part of the Correctional Bargaining Unit Collective Agreement. The LOU is dated May 26, 2016, is addressed to Mr. A. Zafiriadis, the Union’s Senior Negotiator, Corrections Team, and is from by Mr. M. Villeneuve, Director, Negotiations and Security Branch. Irrespective of how the LOU appears in COR33, the proposal for an ACL LOU came from the Union. The date of May 26, 2016, is consistent with the effective date of the renewal Collective Agreement. The ACL LOU had been agreed to earlier during bargaining and was implemented by the Employer on April 1, 2016. The substance of the ACL LOU is as follows: - 3 - Re: Letter of Understanding Administrative Compensating Leave The employer is currently engaged in modernizing facilities programs and services within the Ministry of Community Safety and Correctional Services, and the Ministry of Children and Youth Services. It is recognized that as the modernization process unfolds, working conditions, staffing needs and scheduling patterns need to evolve to match a changing work environment. The employer values the work of all of its employees and would like to maintain a highly trained and professional workforce. In recognition of some of the current impacts from a challenging and changing workplace environment, all full time and fixed term correctional services bargaining unit employees shall be granted thirty-six hours (36) of compensating leave, pro-rata for part time, effective January 1, 2016, and on January 1, 2017. Compensating leave that is not used within a calendar year shall be treated in accordance with article COR8.6 or article COR15.5, as applicable. [4] The central issue in dispute regarding ACL concerns eligibility. The parties addressed the eligibility issue and two other matters by presenting me with an Agreed Statement of Fact and a Joint Book of Documents. Neither side felt it necessary to call viva voce testimony. The Agreed Statement of Fact presents a detailed review of the relevant circumstances relating to the ACL LOU and the specific issues the parties wanted to address at the hearing. The Agreed Statement of Fact, absent the footnotes referencing documents, provides as follows: AGREED STATEMENT OF FACT General Background 1. On October 3, 2014, OPSEU served the Employer with notice of its intent to meet and negotiate changes to the Central Collective Agreement, the Unified Bargaining Unit Collective Agreement and the Correctional Bargaining Unit Collective Agreement. 2. On November 20, 2014, the Employer and OPSEU commenced collective bargaining at the Sheraton Centre in Toronto. - 4 - 3. On December 31, 2014, the Central, the Unified Bargaining Unit and the Correctional Bargaining Unit Collective Agreements expired. 4. On September 22, 2015, the Employer and OPSEU reached a tentative agreement with respect to the Central and Unified bargaining units. 5. On October 30, 2015, the parties ratified new three-year Central/Unified Collective Agreements. 6. The Employer and OPSEU continued to bargain towards a new Collective Agreement for the Correctional Bargaining Unit. Correctional Bargaining Unit Tentative Agreement 7. On November 23, 2015, the Employer and OPSEU reached a tentative agreement with respect to the Correctional Bargaining Unit. Specifically, the parties entered into a “Memorandum of Settlement of all outstanding matters in dispute” between the Employer and OPSEU (the “November 2015 MOS”). 8. The November 2015 MOS documented the parties’ agreement to renew the Corrections Collective Agreement, “subject to ratification by both parties” (at paragraph 1). 9. The November 2015 MOS also stipulated the effective dates of the renewal Corrections Collective Agreement: the Collective Agreement “shall be effective on the date of ratification by both parties and shall expire on the 31st day of December 2017” (paragraph 2). 10. The November 2015 MOS included a Memorandum of Agreement titled “In the Matter of [the] Development of a Stand[-A]lone Collective Agreement for the Correctional Bargaining Unit” (the “November 2015 MOA”). 11. In the November 2015 MOA’s preamble, the parties agreed “that this MOA is conditional on the ratification by both parties of the Correctional Category Agreement with a term commencing January 1, 2015” and emphasized that the November 2015 MOA “will be of no force and effect if the Correctional Category Agreement is not ratified by both parties”. 12. The November 2015 MOA incorporated the items that the parties had agreed to during bargaining. Specifically, Appendix B of the November 2015 MOA was headed “U18” (“Union Proposal 18”) dated November 23, 2015. - 5 - 13. In Appendix B, the Union proposed a Letter of Understanding (“LOU”) that it had drafted. 14. Specifically, the Union proposed, as Item 10 of Union Proposal 18, a LOU headed “New – Administrative Compensating Leave” (“ACL”). Under the Union’s proposed LOU, the proposed ACL credits would be a new type of credit, only available to correctional services bargaining unit employees. 15. The Union’s ACL LOU as proposed on November 23, 2015 stated: The employer is currently engaged in modernizing facilities programs and Services within the Ministry of Community Safety and Correctional Services, and the Ministry of Children and Youth Services. It is recognized that as the modernization process unfolds, working conditions, staffing needs and scheduling patterns need to evolve to match a changing work environment. The employer values the work of all of its employees and would like to maintain a highly trained and professional workforce. In recognition of some of the current impacts from a challenging and changing workplace environment, all full time and fixed term correctional services bargaining unit employees shall be granted thirty-six hours (36) of compensating leave, pro-rata for part time, effective January 1, 2016, and on January 1, 2017. Compensating leave that is not used within a calendar year shall be treated in accordance with article COR 8.6. Bargaining Unit Employees Reject the November 2015 MOS 16. On November 23, 2015, the Employer and the Union signed the November 2015 MOS (which included the ACL LOU). The representatives of the Union and the Employer “unanimously agree to recommend these terms of settlement as attached to their respective principals and, in the case of the signatories for the Union, to the bargaining unit employees” (at paragraph 6). 17. As stated in section 44(1) of the Labour Relations Act, 1995, under the heading “mandatory ratification vote”, a memorandum of settlement “has no effect until it is ratified”. Given that the Employer’s principals ratified the November 2015 MOS, if more than 50 per cent of those voting from the Correctional Bargaining - 6 - Unit voted in favour of ratifying the November 2015 MOS, then the parties’ tentative agreement would have come into effect. 18. On or about December 10, 2015, Correctional Bargaining Unit employees voted on whether to ratify the tentative agreement. 67 per cent of those who voted chose to reject the November 2015 MOS, which included the ACL LOU (i.e., being Appendix B of the November 2015 MOA, Union Proposal U18, Item 10). 19. On December 18, 2015, OPSEU asked the Ministry of Labour for a “no board” report. The strike deadline was January 10, 2016. The Parties’ January 2016 Deal (Incorporating the November 23, 2015 ACL LOU) 20. On January 9, 2016, the Employer and OPSEU reached a Memorandum of Agreement titled “In the Matter of the Referral of Correctional Bargaining Unit Matters in Dispute to Arbitration” (“January 2016 MOA”). 21. The purpose of the January 2016 MOA was to “irrevocably agree in writing to refer all matters remaining in dispute between them to an interest arbitrator for final and binding determination”. As a result, the remaining disputes would not be determined through negotiations, but through a process of interest arbitration. As stated in the preamble of the January 2016 MOA: AND WHEREAS the parties agree to conclude collective bargaining negotiations for the Correctional Category Agreement and refer all matters remaining in dispute to mediation-arbitration; 22. Paragraph 1 of the January 2016 MOA stated: The parties acknowledge that they have reached an agreement on all Correctional Category Agreement items except for those matters listed in paragraph 6 of this MOA. The agreement reached by the parties is appended hereto as Appendix A. 23. At paragraph 3 of the January 2016 MOA (at Tab 2(a)), the parties agreed to appoint Arbitrator Kevin Burkett as an interest arbitrator. 24. Paragraph 7 of the January 2016 MOA stated that the parties “acknowledged that interest arbitration as set out in this MOA shall result in a final and binding decision, which shall be implemented by the parties in accordance with all applicable provisions of CECBA and the LRA”. - 7 - 25. Paragraph 9 of the January 2016 MOA provided that “all agreed to items as set out in Appendix A shall be deemed to be incorporated into the arbitrator’s decision”. 26. In announcing the January 2016 MOA to Correctional Bargaining Unit members, OPSEU advised that there would not be a ratification vote, stating: Will there be a ratification vote? There is no vote. Outstanding issues will go to binding arbitration in front of a single arbitrator, Kevin Burkett. The issues already agreed on will form part of the arbitrator’s award. 27. As Appendix A of the January 2016 MOA, the parties entered into a Memorandum of Settlement dated January 9, 2016 (“January 2016 MOS”). The January 2016 MOS set out “the agreed-to items for collective bargaining negotiations between the OPSEU Correctional bargaining unit and the Employer”. Specifically, as Appendix A, the January 2016 MOS incorporated specific and identifiable sections of the parties’ November 2015 MOS. 28. The January 2016 MOS did not make any changes to the ACL LOU (i.e., as proposed by the Union on November 23, 2016, being Item 10, Union Proposal “U18”, Appendix B of the November 2015 MOA). March 2016 ACL LOU Fact Sheet & Establishing ACL Credit Banks 29. On March 11, 2016, Mr. Michael Villeneuve, Director, Negotiations and Security Branch, Employee Relations Division, TBS, emailed Mr. Anastasios Zafiriadis, Senior Negotiator, Corrections Team, OPSEU. In that email, Mr. Villeneuve wrote: The Employer is in the process of implementing the new Administrative Compensating Leave (ACL) entitlement and changes to Compensating Time-Off (CTO) for eligible employees in OPSEU’s Correctional (COR) bargaining unit. Our plan is to implement both of these items on April 1, 2016. As part of our implementation, we have developed fact sheets that we intend to share with staff prior to April 1st. I’m providing you a draft copy of each Fact Sheet in advance and I am requesting that you review and provide any feedback you may have. Alternatively, my team and I are available to meet and discuss these documents with - 8 - you or your bargaining team. Since April 1st is fast approaching, it would be beneficial to complete this review at the earliest date possible. If you are interested in meeting, we would like this to occur no later than March 18th. Please call if you would like to discuss. 30. Attached to Mr. Villeneuve’s email were two draft fact sheets, one fact sheet dealing with the new ACL credits and the other with changes to Compensating Time Off (“CTO”). 31. The ACL Fact Sheet stated (page 1): OPSEU-represented employees in the Correctional (COR) bargaining unit may be eligible to receive Administrative Compensating Leave (ACL) credits in 2016 and 2017. Eligible employees will receive up to thirty-six (36) hours of compensating leave in 2016 and another thirty-six (36) hours of compensating leave in 2017. The credits will be pro-rated for eligible employees who work less than full-time hours. 32. Under the heading “Eligibility Criteria”, the ACL Fact Sheet stated (pages 1-3): In order to be eligible to receive ACL credits in 2016, employees must be assigned to a COR bargaining unit position on January 1, 2016. Likewise, in order to be eligible to receive ACL credits in 2017, employees must be assigned to a COR bargaining unit position on January 1, 2017. … Employees who commence work in a COR bargaining unit position after January 1, 2016 are not entitled to receive ACL credits in 2016. Likewise, if the employee commenced work in a COR bargaining unit position after January 1, 2017, they would be ineligible for 2017 ACL credits. 33. Under the heading “Administration, Use and Payout of ACL Credits”, the ACL Fact Sheet stated (at page 2): ACL credits that are not used before March 31st of the following year will be paid out at the rate of pay the - 9 - employee was earning on the day the entitlement went into effect. For greater certainty: . Credits provided in 2016 shall be paid out at the rate the employee was earning on January 1, 2016; and . Credits provided in 2017 shall be paid out at the rate the employee was earning on January 1, 2017. 34. The ACL Fact Sheet then provided a number of “eligibility” scenarios under the heading “Examples”. The ACL Fact Sheet stated (at pages 3 and 4): New Employee in the Correctional Bargaining Unit Scenario ‘A’: OPSEU employee commences their work assignment at full-time hours in a COR bargaining unit position on December 31, 2015. Eligibility: The employee would be eligible to receive 36 hours of ACL credit in 2016 because they are assigned to a COR bargaining unit position working full-time hours on January 1, 2016. Scenario ‘B’: OPSEU employee commences their work assignment in a COR bargaining unit position on January 2, 2016. Eligibility: The employee would be not eligible to receive ACL credits in 2016 because they were not assigned to COR bargaining unit position on January 1, 2016. 35. The Fact Sheet also advised that “[f]or the purposes of tracking and managing ACL credits in the Workforce Information Network (WIN) system, ACL credits shall remain separate and distinct from regular Compensating Time-Off (CTO) credits that employees earn for working overtime hours” (page 3). - 10 - 36. Mr. Zafiriadis forwarded Mr. Villeneuve’s email and the ACL Fact Sheet to OPSEU’s COR bargaining committee on March 14, 2016. 37. As the Employer had advised OPSEU representatives, the Employer needed to create a new separate and distinct module (or “bank”) to track and manage ACL credits in the OPS Workforce Information Network (“WIN”) computer system. Thus, to implement the new ACL credit bank in the WIN system, the Ministry of Government & Consumer Services (“MGCS”), Ontario Shared Services, Pay & Benefits Division, created the “OPSEU Correctional Services Bargaining Unit: Administrative Compensating Leave Business Requirement Document” dated January 28, 2016 (last updated March 10, 2016) based on the ACL eligibility criteria (the “MGCS Business Requirement Document”). Prior to these proceedings this document was not disclosed to nor shared with the Union. 38. As stated in the MGCS Business Requirement Document, under the heading “Summary of Scope” (at page 8): A.3 In-Scope . Employees who were represented by OPSEU Correctional Bargaining Unit on January 1, 2016. . COR employees temporarily assigned to a non- bargaining unit position are entitled to receive ACL credit. . COR employees temporarily assigned to a position in another bargaining unit (e.g., AMAPCEO, OPSEU Unified) are only eligible to receive ACL credits if they were paying dues to OPSEU’s COR bargaining unit on January 1, 2016 (i.e., during the first 30 days of the temporary assignment). A.4 Out-of- Scope . Employees represented by OPSEU Correctional Bargaining Unit, but who are assigned to the position on any date after the effective date (e.g., assigned as of January 2, 2016). . Employees not represented by OPSEU’s COR bargaining unit. . Students and seasonal employees represented by OPSEU’s COR bargaining unit. - 11 - 39. Under the title “Creation of a new Administrative Compensating Leave (ACL) Entitlement plan and Accumulators”, the MGCS Business Requirement Document’s “Requirement Details” stated in part (at page 12, “BR1”): Employees are to be assigned ACL credits effective January 1, 2016 and then again in January 1, 2017 per eligibility below: a) All active (HR Status = Active) full time Regular and Fixed Term employees who are represented by OPSEU’s COR bargaining unit (on a permanent or temporary assignment*) on January 1, 2016 (for Year 2016 assignment) and on January 1, 2017 (for Year 2017 assignment) are to be assigned a maximum of 36 hours of Administrative Compensating Leave (ACL) each year. *Note: see Appendix 2 for assignment of ACL credits to employees on a temporary assignment. b) Assignment of credits is to be pro-rated for part time employees based on the ratio of their scheduled weekly hours compared to full-time hours for their position (FTE <1). 40. Under the title “Change in Eligibility and/or FTE change part way through the year”, the MGCS Business Requirement Document’s “Requirement Details” stated in part (at page 13, “BR3”): Once an eligible employee has been assigned ACL credits, no automatic adjustments of any kind must be made to the employee’s ACL credits, if the employee has any kind of Pay Group change (due to transfer, temporary assignment) and/or FTE change or Termination from the OPS part way through the year. All credits assigned must remain available for the employee’s use and/or payout. 41. Under the title “Payout of ACL Credits”, the MGCS Business Requirement Document’s “Requirement Details” stated that “a payout of ACL credits” would be “at the rate it was earned (i.e., the pay rate in effect on January 1st)” (see page 14, “BR5”). OPSEU’s Review of the March 2016 ACL Fact Sheet 42. Mr. Zafiriadis will say that he verbally advised Mr. Villeneuve that the Union had concern(s) with the content of the ACL Fact sheet. - 12 - This conversation occurred via telephone on or around March 11, 2016. 43. On its review, the Union raised the issue that, in its view, all eligible fixed-term (“FXT”) employees in the Correctional Bargaining Unit would receive the full 36 hours of ACL credit in 2016 and in 2017. The Union asserted that the 2016 and the 2017 credits should not be pro-rated for FXT employees who work “irregularly scheduled hours” as the ACL Fact Sheet had set out. 44. Mr. Villeneuve will say that Mr. Zafiriadis did not raise any Union concerns regarding the ACL Fact Sheet’s “Eligibility Criteria”, nor did anyone else. 45. On March 30, 2016, the Employer provided a revised version of the ACL Fact Sheet to OPSEU for OPSEU’s review and feedback. The Employer accepted the Union’s assertion and revised the ACL Fact Sheet to state that only “employees who work regularly scheduled part-time hours will be pro-rated based on the ratio of their scheduled weekly hours compared to full-time hours for their position”. Eligible FXT employees would receive the full 36 hours of ACL credit even if they worked “irregularly scheduled” hours. 46. In his covering email to Mr. Zafiriadis, Mr. Villeneuve wrote “[h]ere is the revised fact sheet as discussed and this version will be posted. Let me know if you have any questions”. 47. The revised ACL Fact Sheet, under the heading “Eligibility Criteria”, the ACL Fact Sheet continued to state (pages 1-3): In order to be eligible to receive ACL credits in 2016, employees must be assigned to a COR bargaining unit position on January 1, 2016. Likewise, in order to be eligible to receive ACL credits in 2017, employees must be assigned to a COR bargaining unit position on January 1, 2017. … Employees who commence work in a COR bargaining unit position after January 1, 2016 are not entitled to receive ACL credits in 2016. Likewise, if the employee commenced work in a COR bargaining unit position after January 1, 2017, they would be ineligible for 2017 ACL credits. - 13 - 48. Under the heading “Administration, Use and Payout of ACL Credits”, the ACL Fact Sheet continued to state (at page 2): ACL credits that are not used before March 31st of the following year will be paid out at the rate of pay the employee was earning on the day the entitlement went into effect. For greater certainty: . Credits provided in 2016 shall be paid out at the rate the employee was earning on January 1, 2016; and . Credits provided in 2017 shall be paid out at the rate the employee was earning on January 1, 2017. 49. The ACL Fact Sheet continued to provide a number of “eligibility” scenarios under the heading “Examples”. The ACL Fact Sheet stated (at pages 3 and 4): New Employee in the Correctional Bargaining Unit Scenario ‘A’: OPSEU employee commences their work assignment at full- time hours in a COR bargaining unit position on December 31, 2015. Eligibility: The employee would be eligible to receive 36 hours of ACL credit in 2016 because they are assigned to a COR bargaining unit position working full-time hours on January 1, 2016. Scenario ‘B’: OPSEU employee commences their work assignment in a COR bargaining unit position on January 2, 2016. Eligibility: The employee would be not eligible to receive ACL credits in 2016 because they were not assigned to COR bargaining unit position on January 1, 2016. 50. On the same day, Mr. Zafiriadis responded to Mr. Villeneuve, stating, in part: “Thanks for the email and the revised fact sheet I - 14 - have forwarded it to the team for review. I will let you know if there are any concerns or questions”. 51. On the same day, Mr. Villeneuve responded to Mr. Zafiriadis via email. Mr. Villeneuve stated, in part, that “Since the ACL implementation is April 1 we will be posting this [the final ACL Fact Sheet] shortly”. 52. OPSEU did not advise the Employer of any further concerns regarding the ACL Fact Sheet, including the ACL eligibility criteria. 53. On or around March 30, 2016, the ACL Fact Sheet was issued and posted in final form. 54. On March 30 and 31, 2016, Union and Employer representatives met at the MSCSC’s Ministry Employee Relations Committee (“MERC”). The official Minutes of those meetings were signed by both Ministry and Union representatives. 55. Regarding ACL, the meeting minutes stated (at page 10, Item #12): The Corporate Employer is working with the ministry to implement the ACL/CTO for April 1, 2016 in accordance with the terms and conditions of the respective Collective Agreement. 56. The MERC meeting minutes acknowledged the Employer’s distribution of the ACL Fact Sheet and its stated eligibility requirements, stating: Communications with respect to the eligibility and implementation of the ACL/CTO has been distributed by the Corporate Employer. 57. The meeting minutes “action item” was stated as follows: Action: MERC encourages LERCs to meet and discuss method to implement ACL/CTO time off in conjunction with the current schedules. Employee Relation Committee Agreements (Youth Justice Services and Probation Services) 58. On or about April 12, 2016, the Employer and the Union agreed to a “Youth Justice Services Division Probation Services Protocol on the Usage and Payout of Administrative Compensating Leave - 15 - (ACL)” (the “Probation Services Protocol”). The Probation Services Protocol stated, in part: Purpose: In recognition of the Collective Agreement obligations regarding Administrative Compensating Leave (ACL), employees’ ability to either be paid out or take time off and the employer’s ability to ensure operational requirements are met, the parties agree to the following: 1. ACL credits that are not used during the year following their issuance and before March 31st of the following year will be paid out at the rate of pay the eligible employee was earning on the day the entitlement went into effect. Specifically: a. Unused credits allotted in 2016 shall be paid out at the rate the employee was earning on January 1, 2016, and b. Unused credits allotted in 2017 shall be paid out at the rate the employee was earning on January 1, 2017, c. Used credits are paid at current rate of pay. 59. In entering into the Probation Services Protocol, the Union did not dispute the Employer’s asserted understanding of the ACL eligibility criteria: i.e., that Probation Services employees were only eligible to receive allotments of ACL credits in 2016 if they were assigned to COR bargaining unit position on January 1, 2016 (or if they were assigned to COR bargaining unit position on January 1, 2017). 60. On or about May 9, 2016, the Employer and the Union agreed to a “Youth Justice Services Division (Facilities) Protocol on the Usage and Payout of Administrative Compensating Leave (ACL)” (the “YJSD Facilities Protocol”). The YJSD Facilities Protocol is identical to paragraph 1 (a-c) of the Probation Services Protocol above. 61. In entering into the YJSD Facilities Protocol, the Union did not dispute the Employer’s asserted understanding of the ACL eligibility criteria: that employees in YJSD Facilities were only eligible to receive allotments of ACL credits in 2016 if they were assigned to COR bargaining Unit position on January 1, 2016 (or - 16 - if they were assigned to COR bargaining unit position on January 1, 2017). 62. In and around May 2016, three Probation and Parole Officers working out of the North Bay Office requested to have their ACL hours paid-out. This request was granted and their ACL hours were paid-out on or around May 19, 2016. Those Officers were: Scott McIntyre, Patricia Maiangowl and Tyler Acquino. All three employees were COR bargaining unit members as of January 1, 2016. Release of the Burkett Award & Implementing ACL Credits in Institutional Services 63. On May 26, 2016, Arbitrator Burkett released his final and binding interest arbitration award (the “Burkett Award”). In the decision, Arbitrator Burkett noted (at page 4): It is important to understand the full scope of the terms of agreement applying to the correctional bargaining unit under both the central and local agreements. Firstly, the economic terms are identical to and flow from the central agreement. ... In addition, the following terms are to have application to the correctional bargaining unit: … Effective January 1, 2016 and January 1, 2017, all full-time and fixed-term correctional bargaining unit employees to receive 36 hours of compensating leave (pro rata for part- time) to be added to existing credits. … 64. On June 14, 2016, Christina Danylchenko, Assistant Deputy Minister, Institutional Services, advised all Institutional Services Staff of the following in a memorandum entitled “Administrative Compensating Leave and Compensating Time Off”: Implementation of the most recent collective agreement includes entitlement to Administrative Compensating Leave (ACL). All employees (regular and fixed-term) who were employed in the Correctional Bargaining Unit on January 1, 2016 will receive thirty-six (36) hours of ACL for 2016. Additionally, all employees (regular and fixed-term) who are employed in the Correctional bargaining unit on January 1, 2017 will receive another thirty-six (36) hours on January 1, - 17 - 2017. Hours will be pro-rated for employees who work regularly scheduled part-time hours. As per the negotiated terms, these hours are subject to pre-approval and will be granted based on operational need. Each year’s allotment of ACL hours must be used by March 31 of the following year. If they are not used by March 31 of the following year (e.g. 2016 ACL credits must be used by March 31, 2017), then they will be paid out at the rate of pay that the employee was earning on January 1 of the year in which the hours were awarded, in accordance with the collective agreement (e.g. January 1, 2016 for 2016 ACL hours). … Requests to use ACL or CTO hours should be submitted in accordance with current local processes for requesting time off, clearly indicating that the request is to use ACL or CTO hours, as applicable. Please be reminded that ACL and CTO hours may not be used retroactively to cover an absence from the workplace; the time must be pre-approved. There is no change to your ability to cash out ACL/CTO hours at any time, upon written request. [Emphasis added.] 65. On November 18, 2016, the parties signed the Correctional Bargaining Unit Collective Agreement. 66. Appended to the Collective Agreement, the parties dated the ACL LOU May 26, 2016 and designated the LOU as “Appendix COR33”. The LOU was from Mr. Villeneuve to Mr. Zafiriadis. The LOU stated: The employer is currently engaged in modernizing facilities programs and services within the Ministry of Community Safety and Correctional Services, and the Ministry of Children and Youth Services. It is recognized that as the modernization process unfolds, working conditions, staffing needs and scheduling patterns need to evolve to match a changing work environment. The employer values the work of all of its employees and would like to maintain a highly trained and professional workforce. - 18 - In recognition of some of the current impacts from a challenging and changing workplace environment, all full time and fixed term correctional services bargaining unit employees shall be granted thirty-six hours (36) of compensating leave, pro-rata for part time, effective January 1, 2016, and on January 1, 2017. Compensating leave that is not used within a calendar year shall be treated in accordance with article COR 8.6 or article COR15.5, as applicable. 2016 ACL Grievance Activity Group Grievances re ACL Implementation 67. In February and early March 2016, a number of group grievances from the Central East Correctional Centre (“CECC”), Central North Correctional Centre (“CNCC”), the North Bay Jail and the Maplehurst Correctional Complex (“MHCC”) / Vanier Centre for Women (“Vanier”) complained that the Employer had denied the Grievors the use of ACL credits. For example, the grievance statement for a group grievance from CECC dated February 16, 2016 (“White et al.”) [53 Grievors] bearing OPSEU Grievance No. 2016-0368-0008 / GSB No. 2015-3083 stated: I grieve that the Employer violated Article 2, 3, Appendix B U18 (ACL) and any other article, legislation, act or policy. The Employer has denied the use of my ACL credit. The Collective Agreement states that Corrections Bargaining Unit Employees shall be granted these credits beginning January 1, 2016. 68. The exact same “grievance statement” is found in the following pre-Burkett Award (May 26, 2016) grievances: (a) a group grievance from CNCC (the “Jackel” Group) [116 Grievors] dated February 28, 2016 bearing OPSEU Grievance No. 2016-0369-0021 / GSB No. 2016-0380; (b) a group grievance from the North Bay Jail (the “Saucier” Group) [39 Grievors] dated March 1, 2016 bearing OPSEU Grievance No. 2016-0616- 0015 / GSB No. 2016-1070; (c) a group grievance from MHCC / Vanier (the “Durham” Group) [126 Grievors] dated March 1, - 19 - 2016 bearing OPSEU Grievance No. 2016-0234- 0094 / GSB No. 2016-0267; and (d) a group grievance from MHCC / Vanier (the “Rucko” Group) [132 Grievors] dated March 1, 2016 bearing OPSEU Grievance No. 2016-0234- 0082 / GSB No. 2016-0215. 69. In a subsequent group grievance from the Hamilton-Wentworth Detention Centre dated May 22, 2016 (“Dorschner et al.”) [116 Grievors] bearing OPSEU Grievance No. 2016-0248-0011, the Statement of Grievance replicated the Statements set out in group grievances identified in above, stating: I grieve that the Employer violated Article 2, 3, Appendix B U18 (ACL) and any other article, legislation, act or policy. The Employer has denied the use of my ACL credit. The Collective Agreement states that Corrections Bargaining Unit Employees shall be granted these credits beginning January 1, 2016. Union Grievance re ACL Implementation 70. In early March 2016, the Corporate Union complained that the Employer had not implemented “a process in a timely manner for members to access their ACL credits”. The Union Grievance dated March 3, 2016 bearing OPSEU Grievance No. 2016-0999- 0029 / GSB No. 2016-0108 stated in full: The Employer is in violation of the Collective Agreement by not implementing a process in a timely manner for members to access their ACL credits. The Collective Agreement, Letter of Understanding ACL states “all full time and fixed term correctional services bargaining unit employees shall be granted thirty-six hours (36) of compensating leave, pro-rata for part time, effective January 1, 2016, and on January 1, 2017”. All requests to access the use of ACL credits have been denied by the employer 71. In its Union Grievance, the Union did not dispute that COR bargaining unit employees were only eligible to receive ACL credits in 2016 if they were assigned to COR bargaining unit position on January 1, 2016. Union Grievance re Alleged Employer Obligation to Prorate ACL - 20 - 72. On or about May 27, 2016, the Corporate Union filed a Union Grievance bearing OPSEU Grievance No. 2016-0999-0047 / GSB No. 2016-0736, alleging that the Employer was obligated to prorate the ACL entitlement for employees who started working for Institutional Services after January 1, 2016. The OPSEU Grievance stated: The Employer is violation of the Collective Agreement and the ACL Letter of Understanding by not prorating ACL entitlement for any employee that commenced employment post January 1st, 2016. Issues Before the GSB on October 6, 2017 73. On March 22, 2017, the parties met at the GSB. On that date, Union counsel advised counsel for the Employer that the union would be arguing that the Employer had contravened the ACL LOU by not granting thirty-six (36) hours of compensating leave to each and every COR bargaining Unit employee who commenced employment between January 2, 2016 and December 31, 2016. The Union will also be taking the position that each and every employee assigned to the COR bargaining unit between January 2, 2017 and December 31, 2017 is entitled to 36 hours of compensating leave under the ACL LOU. 74. The issues to be addressed by the GSB are: a) Interpretation: Does the ACL LOU require the proration of ACL credits for any employee assigned to the COR bargaining unit after January 1, 2016 (i.e., between January 2, 2016 and December 31, 2016) and to any employee assigned to the COR bargaining unit between January 2, 2017 and December 31, 2017)? [Union Grievance dated May 27, 2016 (GSB No. 2016-0736) at Tab 22] (b) Change of Scope: Does the March 2017 claim outlined in paragraphs 73 above constitute an inappropriate expansion of the grievances before the Board? (c) Interpretation: If the Union is not precluded from asserting the claims raised by Union counsel on March 22, 2017, does the ACL LOU require the Employer to grant a full 36 hours of ACL credits to any employee assigned to COR bargaining unit between January 2, 2016 and December 31, 2016 and to any employee assigned to the COR bargaining unit between January 2, 2017 and December 31, 2017? - 21 - (d) In the alternative, equity: is the Union ultimately precluded from asserting any of its interpretation claims on the basis of laches and / or estoppel, even if the GSB accepted the Union’s interpretation of the ACL LOU? [5] At the conclusion of the Employer’s presentation, the only comment the Union made on the Agreed Statement of Fact related to the statements made about the Protocols referenced in paragraphs 59 and 61. Union counsel indicated that it was true that the Union did not dispute the eligibility criteria for ACL credits, but the Union wanted to make clear that it did not express either acceptance or disagreement on the eligibility criteria. [6] Paragraph 74 of the Agreed Statement of Fact identifies the issues the parties wanted to address at the hearing. Before addressing some of these issues, I will make some comments on the ACL LOU and then identify the positions each party took on the issues to be addressed. [7] ACL credits were introduced for the first time in the Collective Agreement for the Correctional Bargaining Unit (“CBU”) covering the period from January 1, 2015, to December 31, 2017. The LOU was proposed by the Union near the end of the negotiation process in November 2015. It provides 36 hours of compensating leave in 2016 and 36 hours of compensating leave in 2017. It identifies all full- time and fixed term employees as the two types of CBU employees that are entitled to receive ACL credits. The LOU also provides that part-time employees will be entitled to compensating leave on a pro-rata basis. The identification of full-time employees and fixed term employees as the types of CBU employees entitled to receive ACL credits means that students or seasonal employees in the CBU are not entitled to ACL credits. From the Employer’s perspective, the last sentence in the LOU means that ACL credits that are not used before March 31st of the following year will be paid out at the rate of pay the employee was earning on the day the ACL credits were granted. For example, an employee who had - 22 - 12 ACL credits remaining from 2016 by March 31, 2017, will be paid out the 12 credits at the rate of pay the employee was earning on January 1, 2016. [8] As I noted at the outset, the central issue in dispute concerns eligibility for ACL credits. The dispute concerning eligibility is about when an employee must be employed in the CBU. The Employer takes the position that only employees who were in the CBU on January 1, 2016, and on January 1, 2017, are entitled to ACL credits for each of those years. The Employer recognized that entitlement to a bank of ACL credits for any given year would not be affected if an employee left the CBU at any time during the relevant year. The Union’s primary claim is that an employee who is hired into the CBU in 2016, after January 1, 2016, or hired in 2017, after January 1, 2017, and is otherwise eligible, is entitled to the full 36 hours of ACL credits for the relevant year. In the alternative, the Union takes the position that an employee is entitled to receive ACL credits on a prorated basis if the employee was hired into the CBU at any time after January 1, in either 2016 or 2017. [9] The other issues listed in paragraph 74 to be addressed are the Employer arguments that the Union’s primary claim amounts to an improper expansion of the Union grievance and that the equitable principle of estoppel should be invoked to preclude the Union from pursuing its interpretations of the ACL LOU in this proceeding. The Union denies that its primary claim amounts to an expansion of the Union grievance and it argued that the principle of estoppel is not applicable in the circumstances of this case. [10] Counsel made concise submissions on the above issues. In addition to the definition of “effective” in Black’s Law Dictionary, Union counsel relied on the following decisions in support of his submissions: Mount Polley Mining Corp and USW, Local 1-425, 2009 CarswellBC 4002 (Sullivan); Fourth Generation Reality Corp. v. Ottawa (City), 2005 CarswellOnt 1939 (Ont. CA); Toronto (City) Board of Education v. Doughty, 1934 CarswellOnt 73 (HCJ); Lanosh-Medad Family Trust - 23 - (Trustee of) v. Versatech Industries Inc., 1999 CarswellOnt 3147 (HCJ); Cartareal Corp. N.V. v. Canada (Minister of Public Works & Government Services), 2005 CarswellOnt 4982 (HCJ); Blouin Drywall Contractors Ltd. v. CJA, Local 2486, [1975] O.J. No. 31 (Ont. CA); Re Enbridge Gas Distribution Inc. and C.E.P., Local 975 (2006), 150 L.A.C. (4th) 225 (Burkett); Re Teamsters Canada, Local 419 and Tenaquip Ltd. (2002), 112 L.A.C. (4th) 60 (Newman); Re Ontario (Ministry of Government Services) and OPSEU (Vitorino), 2010 CarswellOnt 11854 (Ont. GSB); and, Re Ridgewood Industries and UFCW, Local 175 (2009), 183 L.A.C. (4th) 23 (Starkman). [11] Employer counsel referred me to the following decisions during his submissions: Re Keller Foundations Ltd. and IUOE, Local 870 (2014), 249 L.A.C. (4th) 283 (Wallace); OPSEU (Vitorino et al) and Ministry of Government Services (2010), GSB No. 2009-1293 (Abramsky); Re Ontario Power Generation and Society of Energy Professionals, 2012 CarswellOnt 16996 (Surdykowski); Re Ontario (Management Board Secretariat) and OPSEU, 2004 CarswellOnt 10324 (Petryshen); Re Medis Health & Pharmaceutical Services Ltd. and Teamsters, Chemical, Energy & Allied Workers, Local 424 (2000), 93 L.A.C. (4th) 118 (Armstrong); Re Fanshawe College and OPSEU (2002), 113 L.A.C. (4th) 328 (Burkett); M.A.H.C.P. v. Nor-Man Regional Health Authority Inc., 2011 SCC 59; and, Re Conifex Power Limited Partnership and USW, Local 1-2017 (Ketchum) (2017), 284 L.A.C. (4th) 286 (Peltz). [12] I will first address the Employer’s submission that the Union’s primary claim constitutes an improper expansion of the Union grievance and therefore cannot be pursued in this proceeding. Employer counsel based his submission on the following circumstances. The wording of the Union grievance indicates that the issue raised and the only remedy sought related to the prorating of ACL credits for an employee who commenced employment after January 1, 2016. The Union’s primary claim was first conveyed to the Employer at a hearing on March 22, 2017, approximately ten months after the filing of the Union grievance dated - 24 - May 27, 2016. The new claim seeks entitlement to all available ACL credits for an employee who is hired into the CBU after January 1st in either 2016 or 2017. Employer counsel argued that the Union’s primary claim represents a major shift from what the Union was complaining about in the Union grievance. He submitted that the Union is advancing an entirely new claim that is well beyond the scope of the claim in the Union grievance and therefore amounts to an impermissible change in position that should not be allowed. Counsel relied in particular on Re Fanshawe College and OPSEU (2002), supra, as an example of a case where the union’s amended claim was found to be an improper expansion of the grievance and therefore beyond the authority of the arbitrator. [13] In arguing that the Union’s primary claim does not constitute an impermissible expansion of the grievance, Union counsel submitted that the wording of the Union grievance reflects that its substance concerns entitlement to ACL credits for an employee hired after January 1, 2016. Counsel noted that the settlement desired in the Union grievance included any other remedy deemed appropriate. Counsel submitted that the Union’s primary claim is simply a request for a different remedy while the Union is still seeking the prorating of ACL credits in the alternative. He argued that a broad and non-technical reading of the Union grievance supports the view that the Union is not raising a new dispute about entitlement to ACL benefits at arbitration, but is simply raising a different legal argument in support of a different remedy. Counsel argued that the circumstances in Re Fanshawe College and OPSEU (2002), supra, are distinguishable from the instant case and therefore is of no assistance. [14] It is the grievance, of course, that sets out the scope of the dispute and establishes the subject matter over which an arbitrator has jurisdiction. In resolving a dispute about whether a union is expanding the grievance to cover a matter not encompassed by the grievance, the arbitrator must compare the grievance as written and the remedy requested to the issues raised and the remedy sought at arbitration. This exercise should focus on determining the real - 25 - issues that were raised in the grievance and whether the issues presented at arbitration amount to an entirely different dispute. [15] Although I appreciate that the Statement of Grievance and the Settlement Desired in the Union grievance only refer to prorating ACL credits, I agree with Union counsel’s submission that the central issue raised by the Union grievance is whether an employee hired into the CBU after January 1st in 2016 or January 1st in 2017 is entitled to ACL credits. That is the real dispute raised by the Union grievance. In my view, the Union’s primary claim in effect raises the same central issue and does not introduce a different dispute at arbitration. The only difference from each position taken by the Union has to do with the remedy that would flow if one position was accepted over the other. An indication that the proration issue set out in the Union grievance and the Union’s primary claim raise essentially the same legal issue is illustrated by the fact that a determination that favours the Employer’s interpretation of the ACL LOU would effectively result in the rejection of both Union positions for essentially the same reasons. Indeed, Employer counsel essentially referred to the same factors when he made his submissions with respect to the Union’s primary and alternative claims. I agree with Union counsel’s submission that the circumstances in Re Fanshawe College and OPSEU (2002), supra, are distinguishable from the circumstances in the instant case. The union in Re Fanshawe attempted unsuccessfully to change the grievance from one about the status of certain work to one about whether certain individuals should be included in the bargaining unit. The grievance provisions in the collective agreement in that case required the grievance to contain “the nature of the grievance, the surrounding circumstances and the remedy sought.” The Collective Agreement between the parties in this case does not have a similar provision that applies to a Union grievance. To the extent it is necessary to decide this issue, I find the Union’s primary claim does not constitute an expansion of the Union grievance. - 26 - [16] I will now address the central issue concerning eligibility as described previously. There were some matters on which the parties agreed. The first is that the words used in the ACL LOU are clear and unambiguous. They also agreed that the Union bears the onus of establishing a violation of the ACL LOU and that an intention to confer a monetary benefit must be set out in clear language. A matter on which the parties disagreed was the Employer’s position that the contra proferentem rule should be applied in this case. This rule of interpretation essentially provides that the preferred meaning of an agreement should be the one that works against the interests of the party who provided the wording. The rule is applied in appropriate circumstances when the terms of an agreement are ambiguous. Since I agree with position of the parties that the words used in the ACL LOU are clear and unambiguous, I find that it would be inappropriate to apply the contra proferentem rule in the instant case. [17] Union counsel’s submissions on the Union’s primary and alternative claims can be summarized as follows. The ACL LOU has clear language that confers a monetary benefit. It is important to adopt a purposive approach when interpreting the language of the ACL LOU. The stated purpose of granting ACL credits is to give correctional employees additional time off work with pay in recognition of how the challenging and changing correctional workplace has an impact on correctional employees. This impact is present no matter when during the year an employee enters the CBU so it makes no sense to limit ACL credits to only correctional employees who are in the bargaining unit on January 1st of each relevant year. [18] According to the Union, the purpose and plain language of the ACL LOU illustrates that all employees are to receive all 36 hours of compensating leave no matter when they started in the CBU in 2016 or in 2017. The words “all of its employees” in the first paragraph and the words “all full time and fixed term” suggest an intention to cover all employees and not just those that were in the bargaining unit on January 1st. The reference to all employees is not otherwise - 27 - specific in contrast to the type of language the parties used in article 53 of the Collective Agreement dealing with termination payments. The words “shall be granted” are strong and broad words that suggest the notion of money being bestowed on employees. The use of the word “effective” as part of the words “effective January 1, 2016” suggests that the right comes into operation on January 1st, but that it is not a one day right. The dictionary definition of “effective” indicates that the word has a go forward connotation which is what the parties intended for the provision of ACL credits. [19] In support of the Union’s alternative position that the parties at least intended that ACL credits be prorated for any employee who starts in the CBU after January 1st in 2016 or in 2017, the Union relied on the last sentence of the ACL LOU which refers to COR8.6 and COR15.5. The parties agreed that unused ACL credits shall be treated in accordance with these articles which deal with how overtime earned and accumulated during the course of the year will be treated. The fact that the parties agreed to treat unused ACL credits in the same way that they treated overtime suggests that the parties recognized that ACL credits accumulated or accrued over the course of the year, rather than simply being granted on a one-time basis. This supports the position that an employee starting in the bargaining unit after January 1st in either 2016 or 2017 is entitled to ACL credits on a prorated basis. [20] Employer counsel’s submissions can be summarized as follows. The language agreed to by the parties in the ACL LOU can only support the position taken by the Employer. The eligible types of employees are granted 36 hours of compensating leave on two specific dates that are identified. ACL credits are not an earned benefit, but are simply provided to otherwise eligible employees who are in the CBU on the designated dates. The word “effective” is used in relation to January 1, 2016, but it is necessary to review the ACL LOU as a whole and consider that with respect to the year 2017 the parties used the words “on January 1, 2017”. If the parties had intended that the monetary benefit of ACL - 28 - credits would be available in whole or in part to employees who were not in the bargaining unit on January 1, 2016 or on January 1, 2017, the parties would have used clear language to express such an intention and such language is absent from the ACL LOU. In effect, the Union is asking the arbitrator to read additional words into the ACL LOU in order to advance its interpretation. The effect of the Union’s claims is that the Employer would be obliged to pay either full or prorated ACL credits for the relevant year to an employee who was hired into the CBU in either December of 2016 or December of 2017. The language of the ACL LOU simply does not support such a result. [21] Specifically on the issue of prorating ACL credits, Employer counsel submitted that there is nothing in the language of ACL LOU that indicates that the parties intended the prorating of ACL credits. The fact that the parties specifically agreed to prorate ACL credits for part-time employees and did not specifically provide for proration generally for employees who were hired after January 1st in the relevant year clearly suggests that they did not intend prorating to apply in such circumstances. As illustrated by article 46.6 of the Collective Agreement dealing with vacation, the parties know how to express an intention to prorate a benefit. The reference COR8.6 and COR15.5 does not imply that ACL credits accumulate like overtime because it is clear that there is a one-time grant of ACL credits for each relevant year. These provisions were simply used to provide for an end date. [22] The principles that govern the interpretation of disputed language in a collective agreement are well-established. In Re Ontario Power Generation and Society of Energy Professionals, supra, Arbitrator Surdykowski provides a useful summary of these principles in the following paragraphs: 17. The fundamental rule of collective agreement interpretation is that the words used must be given their plain and ordinary meaning unless it is clear from the structure of the provision read in context that a different or special meaning is intended, or the plain and ordinary meaning result would be illegal or absurd. All words must be given meaning, different words are presumed to have - 29 - different meanings, and specific provisions prevail over general provisions. Both the words that are there and the words that are not there are significant. 18. Although as a matter of general principle collective agreements must be interpreted in a manner which preserves the spirit and intent of the collective agreement, it is the words that the parties have agreed to use to express their intention which are of primary importance. The parties to the collective agreement are presumed to say what they mean and mean what they say. Allegedly missing words or terms cannot be implied under the guise of interpretation unless it is absolutely essential to the clear mutually intended operation of the collective agreement, or to make the collective agreement consistent with legislation which the parties cannot contract out of. Although much has been written about purpose, fairness, internal anomalies, administrative cost or feasibility, and what “should be”, such considerations only come into play when the language is truly ambiguous and the arbitrator must apply established labour relations principles in order to choose between two or more equally plausible interpretations. The rights arbitrator’s task is to determine what the collective agreement provides or requires, not what he or either party thinks it should say. If the language is sufficiently clear it must be applied as written regardless of any associated costs or administrative difficulties, or any apparent fairness of the effect on either party or the bargaining unit employees. The parties are entitled to no more or less than what the collective agreement stipulates, and the wording of the collective agreement trumps all considerations other than legislation. [23] After reviewing the facts and considering the submissions of counsel, I am satisfied that the Employer’s interpretation of the relevant language best captures the intention of the parties when they agreed to the ACL LOU. The wording in the ACL LOU relied on by the Union is outweighed by a consideration of the precise wording in the ACL LOU as a whole. In my view, the plain wording of the ACL LOU obliges the Employer to grant 36 hours of ACL credits to full-time and fixed term correctional employees who were in the CBU on January 1, 2016, and on January 1, 2017. The words used by the parties in the ACL LOU clearly indicate that the ACL credits are a one-time grant for each year that is provided to otherwise eligible employees who are in the CBU on the designated dates, as - 30 - opposed to a benefit that is earned for working during some portion of the year in either 2016 or 2017. [24] As arbitrator Surdykowski indicated in Re Ontario Power Generation and Society of Energy Professionals, supra, the words that are absent from the written agreement of the parties can be significant. The subject matter of the ACL LOU is the granting of a monetary benefit to certain types of correctional employees. What is absent from the ACL LOU is clear language to indicate that the parties intended to confer ACL credits to employees who were not in the CBU on January 1 of 2016 or on January 1 of 2017. It is not possible to conclude from the existing language in the ACL LOU that the parties intended that an employee who joined the CBU in late December of 2016 or in late December of 2017 would be entitled to 36 hours of ACL credits or a prorated share of them for the relevant year. Although the parties specifically provided that part-time employees will enjoy ACL credits on a pro-rata basis, there is no wording to indicate that the parties intended that there will be a prorating of ACL credits for an employee who is hired into the CBU after January 1st in 2016 or after January 1st in 2017. I agree that the reference to COR8.6 and COR15.5 does not indicate that the parties intended ACL credits to be treated in the same way that overtime is treated. In my view, the parties only referenced these provisions to provide an end date for the use of ACL credits. [25] For the foregoing reasons, I find that the Union has not met its onus to establish a contravention of the ACL LOU based on the claims it made at the hearing. Given the conclusion I have reached on the interpretation of the ACL LOU, it is unnecessary to address the estoppel issue. The Union grievance dated May 27, 2016, is hereby dismissed. I will remain seized of the remaining ACL grievances. Dated at Toronto, Ontario this 17th day of January, 2019. “Ken Petryshen” Ken Petryshen, Arbitrator